1) The
ADEA prohibits
discrimination against an employee 40 years old or older on the basis of age with respect to any term,
condition, or
privilege of employment, including, but not limited to hiring, firing, promotion, layoff and recall, transfer, testing, use of company facilities, compensation, benefits, job assignments, classifications of employees, recruitment, fringe benefits, retirement plans, disability
leave, training, apprenticeship programs
a) “Employee” is defined as “an individual employed by any employer.”
b) “Employer” is defined as “one engaged in an industry affecting interstate commerce with 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year”
c) “Adverse employment action”
(i) To constitute an adverse employment action, the action must significantly alter the terms and conditions of the job.
(ii) An important question is, “Would the employment action which has occurred be viewed as material by a reasonable person?”
(iii) Actions, other than discharge, have been held to violate the ADEA, including:
(a) Reassignment
(b) Age-based harassment
(iv) Not all actions have been held to be a violation, generally including the following:
(a) Adverse employment actions taken for reasons other than age or any other unlawful discrimination motive;
(b) Mere threats to downgrade or to fire;
(c) Lateral transfer; and
(d) Reassignment to specific geographic area
2) Evaluation of employees
a) Employers are to evaluate older employees on their individual merits and not on their particular age.
b) Employers cannot rely on age as a proxy for an employee’s other characteristics, such as productivity, stamina, mental acuity but rather must address each of those factors on an individual basis. Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)
3) Job
notices and advertisements may not include age preferences, limitations, or specifications, except in rare circumstances in which age is a
bona fide occupational qualification reasonably necessary to the normal operation of the business.
4) Pre-employment inquires may include age or date of birth, but such inquiries are closely scrutinized to make sure the inquiry is made for a lawful purpose.
5) The disparate treatment theory of employment
discrimination is also applicable under the
ADEA.
Hazen, 507 U.S. 604.
6) Employer may not
discriminate between two employees over the age of 40 by favoring one on the basis of age.
7) Mandatory retirement is not lawful, except in limited
cases:
a) Bona fide executive
b) High policymaking employee
8) Reverse age
discrimination is not prohibited.
American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006
